What is the rule for divorce in India? Where it is prescribed?
The rule of divorce in India is governed by Hindu law under the Hindu marriage act 1955 and comes with the meaning of dissolution of marriage under Hindu law. The divorce law has its own theory and procedures to be dealt with various amendments under such provisions.
The rule is prescribes with proper statutory act called Hindu Marriage Act 1955. It focuses on various grounds and theories of divorce which includes fault theory, mutual consent, breakdown with concerning the grounds such as cruelty, desertion etc and in what ways these grounds are governed through amendments.
The rule for divorce in India brings out the grounds that are available to both husband and wife and the grounds which are only available to wife.
Divorce in India is initiated after 1 year of marriage.
What are the grounds for divorce?
The grounds which are recognized under Hindu marriage act 1955 are-
- Fault ground [section 13(1)]
- Breakdown ground [section 13(1A)(i), 13 (1A)(ii)]
- Divorce by mutual consent [section 13-B]
- Customary divorce [section 29(2)]
- Faulty ground
Hindu marriage Act 1955 lays down 9 grounds of fault ground of divorce in India that includes adultery, cruelty, desertion, venereal disease.
- Desertion
The expression has been clearly explained by the parliament wherein they say that the desertion of the petitioner without reasonable cause by the other party or without consent of such party which includes willful neglect. It can also be stated that permanent leaving the spouse by the other without having any sensible reason without consent of the other.
There must be two essential conditions for the offence of desertion-
- The separation or splitting from each other is real
- Absence of cohabitation leads to the dissolution of marriage
Savitri Pandey V. Prem Chand Padey] AIR 2002 SC 591
The Supreme court held that without previous cohabition between the parties the offence of desertion is not maintainable.
Bipin Chander V. Prabhawati ]AIR 1954 SC 176
The honorable court was of the view that the grounds of desertion are different from that of adultery and cruelty and the purpose of motion of desertion is not always said to be complete and hence falls under the category of inchoate crimes.
- Cruelty –
Cruelty was not considered as the ground for divorce in India before 1976 and was added as the ground under provision of judicial separation and with the effect of amendment acts the offence of cruelty as now become as one of the important ground of divorce in India.
Vidhya Vishwanath V. Kartik Balakrishnan ] AIR 2014 SC 21
The court defined cruelty as a state of mental or physical, Intentional or unintentional conduct of a person.
Savitri Pandey V. Prem Chand Pandey] AIR 2002 SC 591
The court held that the mental cruelty amounts to that conduct of the other spouse that causes mental suffering bout the marital life. It is accessible approach towards detrimental and harming the other one.
Gurbux Singh V. Harminder Kaur] AIR 2010 SCC 201
The court held that mere a simple aggravation or abuses and fear of married life can give birth to the offence of cruelty which is a normal course routine in today’s world cannot become a only ground for separation under the offence of cruelty.
Pravin Mehta V. Inderjit Mehta] AIR 2002 SC 2528
The court had defined the meaning of mental cruelty as a ‘state of mind ‘.
The following instances can amount to an offence of cruelty for divorce in India
- Giving threat to commit suicide
- False acusation of adultery
- Demand of dowry
- Impotency
- Refuse to have cohabitation
- Adultery –
Adultery is recognized as a criminal offence in almost all countries but in maximum countries it is recognized as a ground for divorce in India that is considered as a matrimonial offence under Hindu law.
In adultery, it’s necessary that there must be consensual or voluntary sexual intercourse between the married person and another being unmarried or married of being an opposite sex and not being the other’s spouse, during the substance of marriage.
The offence of adultery can lead to the ground of dissolution and hence punishable under Hindu marriage act
The offence of adultery is found under following instances-
- Circumstantial evidence
- Contracting venerable disease.
[Subbaramma V. Saraswati Court] AIR
The court held that single act of adultery cannot be amounted to judicial separation or divorce in India. The court of justice drew the conclusion that there be both to have been committed an act of adultery together.
- Insanity
Section 13(iii) talk about the ground of insanity under divorce, the petitioner may get the decree of judicial separation or divorce law in India if the respondent is being a part of regular mental problem. The requirement of insanity can be acquired by following conditions-
- The state of being unsound mind
- The state of mental disorder
[Ram Narayan v. Rameshwari] AIR 1988 SC 2260
The court was of the view that a person who is suffering from a schizophrenic mental disorder cannot be proven for a ground of insanity as the said mental disorder is not merely sufficient ground and therefore it must be also be proven that the petitioner is not expected to live with the respondent on the reasonable ground.
[Alka Sharma V. Abhinesh Chandra Sharma] AIR 1991
The court held that it was proved that the wife was suffering from schizophrenia and the spouse therefore was held to be entitled for nullity of marriage.
- Leprosy-
Leprosy is also one of the ground under section 13(1) (iv) of Hindu Marriage Act 1955, this ground is the cause for both judicial separation and divorce in India.
To be the ground for divorce it must have been in form of virulent and incurable form and on the other hand a minor leprosy which is capable of being cured is not a ground for divorce in India under leprosy.
- Venereal disease-
Section 13 (1)(v) deals with venereal disease as a ground for divorce in India under Hindu Marriage Act 1955.
[Smt. Mita Gupta V. Prabir Kumar Gupta] AIR 1989
The court held that venereal disease is the cause for divorce in India, but the party may be denied relief even if the other partner suffers the disease as much the former party is responsible for the disease.
- Conversion-
Section 13 (1)(ii) talks about the divorce in India as a ground wherein if the respondent has converted from hindu religion to other religion and if ceased to be hindu, then there has to be 2 conditions satisfied-
- Person is ceased to be hindu
- He is converted his religion to another religion
[Teesta Chattoraj V. Union Of India]AIR 2012
The court held that converting to another religion has been a ground for divorce in India, but a spouse may anytime be denied divorce even also if the other spouse has adopted some other religion.
- Renunciation of the world
Renouncing the world has been made a ground for divorce in India under section 13(1)(vi) within the meaning of Hindu Marriage Act. The term renouncing means a formal resignation from the world with giving up of few rights. The ground can be obtained by satisfying two conditions-
- The responded has renounced the world
- He must have entered to other religion
[Sital Das V. Sant Ram] AIR 1954
The court held that a person is said to be converted when he goes few ceremonies prescribes for that religion to which he is going to be converted.
Presumption of death-
If a person is presumed to be lost for a period of 12 years, the court will presumed him to be died and on this very ground the petitioner can seek divorce under Hindu Marriage Act 1955.
Irretrievable breakdown of Marriage
The parties can go for a decree of divorce whether recognized before or after commencement of Act on ground that if the parties have not cohabited for the period of 8 years or more after passing of the decree of judicial separation, they can go for the said dissolution of marriage.
[K.Srinivas Rao V. D. A Deepa] AIR 2013
The court has treated this ground as a severe situation, inter alia, causing marital separation and was of the opinion that irretrievable breakdown of marriage cannot be the ground for divorce .
Divorce by Mutual consent
Both have been residing separately for a period of 365 days.
They are not living together and are separated
Both are of the view that marriage should be dissolved.
[ Smt. Jayashree Ramesh Londhe V. Ramesh Bhikaji Londhe] AIR 1984
The court held that either of the party in marriage can withdraw the petition filed after once thinking about the matter in divorce through mutual consent and in this way the party can go for the withdraw of the earlier consent if also not obtained by using fraud, undue influence, and coercion.
- Customary divorce
The court follows the custom where it is not contrary to public policy. In some of the cultures divorce was acceptable through customs. It is not necessary for the parties to seek divorce in India from court if the grounds for divorce are recognized by customs.
Is there any special provision for women?
The provisions for divorce is provided for wife where the grounds states only for wife to seek divorce from her husband and they are-
- If the husband is having more than one wife (section 13(2)(i))
- If the husband is guilty of rape and also sodomy or bestiality(section 13(2)(ii)
- If there is non-resumption of cohabitation after a decree of maintenance (section 13(2)(iii))
- Repudiation of marriage
Can the husband file the divorce under 498 A?
It is observed that husband can seek and claim divorce in India under 498A wherein he has been a victim of cruelty form the side of wife.
[ Rani Narasimha Sastry V. Rani Suneela Rani] AIR 2019
The Supreme court held that the husband can seek divorce on the basis of cruelty within the meaning under section 498A IPC.
Article by – Nitisha Sharma